City Council fighting Zoning Board of Appeals in court

ROCHESTER — The City Council has taken Rochester’s Zoning Board of Appeals to court in an attempt to overturn variances granted last year for a manufactured home park on Old Dover Road.

The council’s suit, which was heard Monday in Strafford County Superior Court, comes as a part of the formal process to appeal September 2016 variances that would allow for the expansion of Addison Estates, an age-restricted, 24-unit park, to an abutting 22-acre vacant lot at 418 Old Dover Road.

The contention between the City Council and ZBA comes down to hardship, and the fact that during zoning ordinance changes in 2014, Rochester eliminated manufactured home parks, which include mobile home parks, as a permitted use in the agricultural zone.

No decisions were made during Monday’s appeal hearing. The case is currently under judicial advisement.

City Attorney Terence O’Rourke is representing the City Council in the appeal, for which the city is not listed as a plaintiff.

The ZBA is listed as a defendant, as are Dover residents Donald and Bonnie Toy, the owners of Addison Estates and the 418 Old Dover Road parcel.

Attorney Don Whittum represented the Toys in court Monday. According to Whittum, the city of Rochester is not funding any legal counsel for the ZBA.

Zoning Board Chairman Ralph Torr, who is also a city councilor, couldn’t be reached for comment. When asked about the ZBA’s position as a defendant, Whittum said board members have expressed displeasure.

“I think their view is, ‘What the hell are we here for if the City Council wants to decide if variances want to be decided or not?’” said Whittum.

In the original 2016 variance request, the Toys claimed the zoning ordinance’s prohibition on new manufactured home parks created hardship. They claimed the ordinance prevents them from being able to expand their existing business, a 55-and-over park, when there are existing similar properties already in area.

The city’s 2014 zoning ordinance changes grandfathered in existing parks, of which there are at least a couple dozen in Rochester, according to O’Rourke.

The City Council sought a rehearing last fall after the ZBA granted variances for the Toys, although the ZBA denied that rehearing request. The court appeal of that decision argues the variances shouldn’t have been granted because the city’s zoning ordinance doesn’t allow for existing parks to expand their nonconforming uses to other parcels.

The appeal also argues the Toys haven’t demonstrated the ordinance creates undue hardship compared to other similar properties.

“The owner of a property must show that the hardship is a result of a specific condition or conditions of the property, not the area in general,” O’Rourke wrote in his appeal. “The burden cannot arise as a result of the zoning ordinance’s equal burden on all property in the district as a certain degree of hardship is implicit in all zoning.”

Whittum said there are seven characteristics that make the Toys’ 418 Old Dover Road parcel unique, including the fact that it is “boxed in” on all sides by mobile home parks, save for wetlands that abut it to the north. The lot is also close to the Somersworth line, over which there is another mobile home park.

In addition, Whittum said the lot has approximately half the road frontage required of a business in the agricultural zone, which in combination with the proximity to a number of mobile home parks could make it difficult to find another use for the parcel.

“We think these features… make it unique and worthy of granting an ordinance,” he said.

It’s unknown when the court will reach a decision about the appeal. Whittum said he believes the judge will “wrestle with it for a little while.”

Among the rulings the court could make are a denial of the city’s petition, a reaffirmation of the ZBA’s variance, or the matter could be send back to the ZBA for another determination on the issue of hardship, according to Whittum.

As of Thursday, the court appeal has cost Rochester $374.50, according to O’Rourke, a salaried Rochester employee who doesn’t receive separate compensation for representing the City Council in the appeal. The $374.50 figure includes the court’s $260 filing fee and a $114.50 fee for the sheriff’s department to serve the paperwork.